Word v. Box

• Decision Date: 22 October 1886
• Citation: 3 S.W. 93
• Parties: WORD, Jr., and others <I>v.</I> BOX and others.
• Court: Texas Supreme Court

3 S.W. 93

WORD, Jr., and others

v. BOX and others.

Supreme Court of Texas.

October 22, 1886.

Appeal from Anderson county.

This was an action of trespass, brought by J. J. W. Box and others, appellees, against Jeff Word and John H. Reagan, appellants, and a number of parties, to try the title to the John Arthur one-fourth of a league of land situated in Anderson county, Texas. The plaintiffs are the children of James E. Box and Mary Box, deceased, and claimed the land as devisees under the will of James E. Box, and as his separate property. Mary Box claimed the land as community property, and the defendants Reagan and Word claimed 152 acres of said land under deeds from said Mary Box to R. A. Reeves, and disclaimed title to the balance. They also claimed as purchasers in good faith, for a valuable consideration, without notice of the plaintiffs' claim, and under the statute of limitations of three, five, and ten years. Reagan and Word severed from the other defendants in the trial, by agreement.

On the trial the jury returned the following verdict: "We, the jury, find the land in controversy to be the separate property of James E. Box, deceased. We find in favor of plaintiffs, or such of them as are not barred by the statute of limitations, viz., Mrs. Woodard and Mrs. McClung. We find for the defendants the remaining three-fifths of the land, on their plea of the statute of limitations."

The plaintiffs read in evidence the following deeds: A deed from James E. Box to William S. McDonald, agent of Leonard Kuhn, dated February 27, 1847, and therein reciting that said Box, in consideration of $1,000, had sold and delivered to McDonald, as agent of Kuhn, the following land certificates, viz., one certificate for 640 acres, one for 369 acres, and one for 320 acres, in all 1,329 acres; and which McDonald was authorized to locate on vacant lands in Anderson county, and apply for and receive patents from the state for Kuhn. A deed of mortgage from McDonald, agent of Kuhn, to James E. Box, dated February 27, 1847, and therein reciting that McDonald, as agent, had sold and delivered to James E. Box the above-named certificates, with the land to be surveyed under the same; and further reciting that McDonald, agent of Kuhn, had conveyed to said James E. Box one-fourth of a league of land granted to John Arthur; and providing that the mortgage should be void on condition that McDonald, agent of Kuhn, should make good and valid title to Box for the Arthur head-right, and have regularly proven up and recorded a power of attorney and transfer from Arthur to Kuhn for the same, and keep Box and his heirs in possession of the land. The deed from McDonald agent of Kuhn, to Box, for Arthur's head-right above referred to, is dated February 27, 1847, and recites that McDonald, agent of Kuhn, for the consideration of $1,000 paid him by Box, had sold, transferred, and conveyed to said Box the Arthur head-right. All of said deeds bear the same date, and were filed with the clerk for record at the same date. It was proved that McDonald and the subscribing witnesses to all of the above deeds were dead. A deed from Mary Box, releasing the mortgage on the certificates, and conveying to Kuhn the land surveyed under the certificates, retaining a lien on the land until Kuhn should convey to her, said Mary Box, all his title to the Arthur head-right, and also should have regularly proved up and recorded a power of attorney from Arthur to himself for said land, dated July 25, 1853. An instrument purporting to be a power of attorney from Arthur to Kuhn was recorded without proof of its execution, and was not read in evidence. A deed from James Douthitt, executor of the will of James E. Box, deceased, and from Mary Box to R. A. Reeves, reciting that they had, by virtue of the power and authority vested in them under said will, and for the consideration of $438.60 paid to them by said Reeves, sold and conveyed to said Reeves two tracts of land described in the field-notes and in said deed as tracts Nos. 1 and 2, being part of the Arthur head-right, and containing together 146 2-10 acres land, and the said Mary Box, for the said consideration, sold and conveyed to said Reeves said tract of land, describing the same as part of the community property acquired during the marriage of herself and James E. Box, and to which she was entitled as his surviving wife, and warranting and defending the title to said Reeves against all lawful claims whatever, dated December 23, 1851, and recorded on the same day. The death of the subscribing witnesses to said deed was also proven. The executor, James Douthitt, died in November, 1852. Roland H. Box, the other executor named in the will, never qualified as executor, and was dead. After the death of the executors, Mary Box conveyed two additional tracts, part of the Arthur head-right, to said Reeves, — one tract for 25 acres, and the other for 40 acres, describing the same by metes and boundaries, and therein reciting that the sale was made to pay the debts of James E. Box, deceased; and therein further reciting that she executed and delivered said deeds in her own right, and as widow and administratrix of said James E. Box, deceased, warranting and defending the title to the same, and acknowledging the receipt of the purchase money for the first-named tract, $117, and for the other, $240. One of said deeds bears date January 11, 1854, and was recorded the next day, and the other is dated July 10, 1855, and recorded on the same day. The sales to Reeves were all made before Mrs. Box married Davis, and before the sale to Jackson, and before she removed from the Arthur survey.

The defendants Reagan and Word claim under a regular claim of title from R. A. Reeves down to themselves, and which was duly recorded. Reagan and Word purchased from Oppenheimer four tracts of land, all purchased at the same time, as a whole, and as one entire tract, being about 152 acres, including the land in controversy. Two of said tracts, one for 25 acres, and the other for 40 acres, are the tracts in controversy. A few days after their purchase they had the lines around said land of 152 acres run off by a surveyor. Their deed from Oppenheimer bears date June 12, 1872, and was recorded on the same day. Their tenants occupied a cabin, to which was attached a garden and inclosure, situated in part on one of the tracts included in the purchase from Oppenheimer, which was a part of Reeves' first purchase of 146 2-10 acres from Mrs. Box, and not in controversy in this suit. The cabin and garden were not on the tracts in controversy, but were within the lines of the survey of 152 acres, and the tenants claimed possession of the entire survey of 152 acres, using the timber thereon, and protecting the same against trespassers for these defendants, until they sold the part of the tract on which the cabin and garden were situated, in the summer of 1883. The land was laid off into blocks, sections, lots, and streets, mapped and designated as "Reagan and Word's Addition to Palestine;" and on June 20, 1877, the map was placed on record in the land records of Anderson county, being five years and eight days after defendants took possession by their tenant. They paid all the taxes on the land since their purchase, and since the subdivision; describing the same as blocks, lots, and sections, in accordance...